Furor Rises as Proposition 35 Targets Trans and Sex Workers

The passing of Proposition 35 in California has raised a furor amongst LGBT activists. The law won a landslide victory of 81.1 percent earlier this month as the simplified description of its aims convinced voters they were supporting harsher sentencing for human traffickers, a seemingly uncontestable issue. But groups advocating for both the rights and safety of the LGBT community of California and groups supporting sex workers have contested the redefinition of several key terms in the proposition's language that they believe will see LGBT youth, in particular trans people, punished by police enforcement to a disproportionate degree.

"While the motivations of those supporting this prop may come from a good place, the language of the bill does nothing to help the actual victims of sex trafficking," explained Cyd Nova, a trans gay man and long-time sex worker who works for the St James Infirmary. "Victims will still be incarcerated, deported and subjected to the violence of the state. A parallel can be made to the 'war against drugs,' which has done nothing to reduce drug use, it has only intensified violence around it. Criminalization is not the right tool kit to solve the problems that exist within sexual labor."

The definition of "trafficking" has been expanded by the proposition to the point that anyone in the sex worker's circle -- family, friends and anyone offering any form of support -- could be legally prosecuted as a trafficker. This could destroy what few networks of support and community sex workers have developed for survival. Acts of what are termed "sexual exploitation" will meet harsher fines and prison sentences with sex acts that are consensual and devoid of any actions of force of fraud punished equally. Therefore sex workers that are not victims of trafficking will become victims of the new law.

Those affected by actual exploitation will fear that going to the police will bring criminal charges to themselves. Sex workers will be discouraged from working together to create safer environments and will become more at risk of violence.

"It detracts from sex workers' ability to be an ally to law enforcement in finding actual sex trafficking," Nova explained. "Sex workers are best situated to see situations in the sex industry where coercion is happening, but if we fear of being arrested ourselves, we cannot work collaboratively with law enforcement to help those people who are in bad situations."

The proposition also lays out plans to require anyone who has been convicted of a prostitution-related offense between 1944 and now register as a sex offender and become a target of monitoring. In the past crimes such as "impersonating a female" and "associating with homosexuals" have been prosecuted in such a way as to, under the new law, land someone on the registry for life.

"Historically and to this day, these charges have been used disproportionately against women in sex work (cisgender and transgender), transgender women whether or not they are sex workers, and women of color, as well as gay men and gender nonconforming people. This is a misguided and dangerous overreach in a bill ostensibly aimed at protecting many of these same people," wrote activist Melissa Gira Grant for RH Reality Check.

There are many reasons a person becomes a sex worker, but for those marginalized into homelessness, it may be their only option for income. Twenty percent of homeless youth are LGBT whereas the general youth population is only 10 percent LGBT. A 2007 report from the National Gay and Lesbian Task Force in collaboration with the National Coalition for the Homeless found that of the 1.6 million homeless American youth, 42 percent identify as lesbian or gay and a disproportionate number identify as bisexual or transgender. Twenty-six percent of gay teens that came out to their families were forced out. LGBT youth also leave home due to physical, sexual and emotional abuse. LGBT youth are twice as likely to experience sexual abuse before the age of 12.

LGBT homeless youth also report they are threatened, belittled and abused at shelters by staff as well as other residents and are therefore further marginalized and pushed towards sex work, drug use and mental illness.

Trans people, particularly women, find they are discriminated against in the search for regular minimum wage positions. Those hoping to undergo gender transition whether via hormone treatment or surgery may in desperation take to sex work in order to gain the necessary funds. Transitioning can be very much a medical necessity and a matter of life or death for some. Only the Healthy San Francisco program currently provides these services for uninsured residents.

Trans women, and particularly trans women of color, are discriminated against in their employment positions and are as such pushed into sex work. Forty-seven percent of black trans people, 29 percent of Latin and 20 percent of multiracial trans people have undertaken sex work, compared to 6 percent of white trans people.

In a phenomenon called "walking while trans," transgender women often are victim to police harassment regardless of their involvement in sex work. A report on Latin trans women in Los Angeles recently published by BIENESTAR, a non-profit LGBT social service organization, and the Charles R. Drew University of Medicine and Science found that two thirds of participants received verbal harassment from police officers. Twenty-one percent reported physical assault and twenty-three percent sexual assault. Officers stopped sixty percent when they were not in violation of any law -- when they were waiting for a bus or walking to the store.

"Under Proposition 35, the sex worker becomes the criminal. The sex worker’s housemate potentially becomes the sex trafficker. Meanwhile, no one feels safe enough to report to the police if they are a victim of trafficking or exploitation," argued Exotic Service Providers Legal, Education and Research Project President Maxine Doogan. "Consensual commercial sex workers will end up on the sex offender registry for life along side pedophiles, people caught urinating in public and those arrested for having sex in a public space. This law is anti-prostitution, not anti-trafficking."

The U.S. draws many trans people who are seeking asylum from violence in other countries. When unable to gain a work visa they turn to sex work for income. This extremely vulnerable group will be impacted by the new law, to a dangerous degree.

"We have seen time and time again, a conflation of ’migrant sex workers’ with ’sex trafficking victims,’" described Nova, suggesting undocumented trans people will be deported and returned to life-threatening situations.

One provision of the proposition was blocked from taking effect this week. The demand for Internet usage monitoring of all of those registered to the sex offender list has been deemed unconstitutional by a judge.

"While LGBT people saw many wins in this election, Prop 35 is a loss," concluded the National Centre for Transgender Equality Director of Policy Jean Tobin. "Critically, under Prop 35’s confusing language, individuals involved in consensual, adult commercial sex work -- often poor and working class women, many of whom are transgender -- could be branded as sex offenders rather than provided with help and opportunities. Transgender women of color in particular are already subject to profiling, police abuse and even being mischarged as pimps. State and federal authorities should focus on assisting vulnerable people and identifying the real bad actors who traffic people against their will for sex or labor."